More on Religion: Justice Moore and the Ten Commandments

Yesterday I mentioned the strict monotheism of early Jews and Christians. I'll mention another in more detail with an eye towards my take on the Ten Commandments contraversy, and another opportunty to point out Sean Hannity's simple mindedness. Pontius Pilate is known for three things. He introduced Roman military standards bearing the Roman eagle into Jerusalem. The eagle signified not only Rome, but also Jupiter, one of the city's patrons. He used temple funds to build an aqueduct, a situation used for humorous effect in Life of Brian. And he presided over the crusifixion of Jesus the Nazorean. Its the introduction of the Roman standards that interests me here. Pilate took it for granted that a display of the dominant Roman iconography was a good thing to do in Jerusalem. For a Roman, such an act said that Rome provided peace, justice, and protection here, all of the benefits of proper to a state. But the Jews were canny in teasing out the embeded religious meaning in such acts and recognized that the standards themselves bore the eagle, a symbol of Jupiter, a god whose aspects included those of the soveriegn function, providing peace, justice, and protection. Who precisely was providing this peace? Was it Rome or Jupiter. Ultimatly this was a muddled question for the Romans who though they might be drifting towards indifference toward their Indo-European pantheon, would have still conflated the state and the state religion. That the soveriegn symbol of the state should be a symbol of the god of soveriegnty seemed natural. In the case of America (or Germany) the use of an eagle as its symbol does not reflect our belief in Jupiter as the source of a good polity, but the traditional meaning of the symbol as a soveriegn icon. How does a state like Rome respect the religious sensibilities of minorities like the Jews when its public iconography is intertwined with a specific religious interpretation? Pilate found the Jews in protest, brought in troops, but the Jews refused to yield. Unwilling to massacre the protesters over this, Pilate withdrew the standards. In doing so, he respected the religious sensibilities of the locals.

The United States in this respect is like Rome, as it is in so many other ways. We have a dominant religion, closely associated with our founding, which has a privleged place in the public square, or should I say forum. Prayers by clergy open legislative sessions, our money professes our trust in the monotheistic God of Abraham, and the Decalogue graces many a public building. As such we occasionally offend those citizens not subscribing to the majority faith, and so the state gives offence to its citizens. Should a moden Pilate coerce acceptance, as Justice Moore intends to do, or should that modern Pilate withdraw such symbols? The question is comlicated by two fundamental changes in the relationship of the state to its people since the founding. First, the American people have become more diverse. Second, the role of the state has become more ubiquitous. The American religious sensibility has grown more eccumenical in responce to that growing diversity, shifting from a Protestant sensibility to a Christian sensibility to a Judeo-Christian sensibility. One might resonably conclude that it would be possible to include Muslims one day in this formulation. But, diversity has grown faster and reached farther than simply diverging interpretations of the God of Abraham. Further, it is probabale that this trend will continue and that future American generations will see more citizens who do not derive a spiritual sense from the Bible. All of which suggests that the very presence of the our Judeo-Christian assumptions (actually the assumptions are more of a Christianity which sees its roots in Judaism, and which Jews find sufficiently welcoming) in state iconography will continue to give effence.

Meanwhile the role of the state has grown considerably since the founding. If the state did as little as it once did, and was strictly purged of all religious entanglements, sufficient to satisfy the most prickly atheist, Christians could hardly say that the public square had been shorn of its religiosity because the state occupied so little of the public square. For a long time, the public square was in a small town, and the three institutions of town, school, and church cooperated toward common goals under a broad consensus. See a fabulous description of this and the changes being wrought in this article by Peter Beinart. The state was remote, and communities opperated according to community standards, reflecting local sensibilities somewhat imperfectly, but always locally. Enter the mighty state as provider of an interstate highway system, federal welfare programs, money for education, and a the federalization of many crimes which brings more and more people before federal courts. The great federal government does a far poorer job of respecting local sensibilities. This was intended to be one of the strengths of a federal system of government, by which each level of government would attend to the concerns that manifest at its own level. But, the federalization of so much of state and local life has brought in the national sensibility to every local community. Since the government at the federal level is most encumbered by the 1st ammendment's establishment clause, the intrusion of the federal government into so many spheres of public life means that the sensibilities of the whole nation must be respected in every community. A diversity of community approach to religious sensibility is lost when the public square is dominated by the federal government. One approach is demanded, a national approach. Just as we have a national approach to drug policy which can be imposed on states that consider alternatives, we have a national approach to religous displays.

How the do we treat the question of mixed symbols, like the Roman eagles, a symbol that has a religious and secular meaning? As Slate has produced in a slideshow, we have generally adopted two related tests. Does the display have secular intent, and is it presented as special, or one of many sources of law. As Judge Napolitano said while guest hosting on the Radio Factor on the 21st of this month, when asked why he installed the Decalogue, Justice Moore could have replied that it forms a basis for our law, but instead replied that it was his religion. This is the wrong answer, and Judge Napolitano was right to suggest that in doing so, Moore was looking for a fight. Sean Hannity, on the other hand confuses these two, or perhaps just recognizes no distinction between a secular and a religious purpose. He argued that the country was founded on a Judeo-Christian basis, and so should feel no difficulty violating the establishment clause if we remain inoffensive within that tradition. Or, to return to my Pilate example, the eagles will be imposed by the coersion of the majority, and the minority can just lump it. This misreads the purpose of the Bill of Rights, the establishment clause, and the founders fear of a majority which does not respect the minority. I take the position of John Adams and respond that the best way for me to enjoy the Free Excercise clause of the 1st Amendment is not for government to assist me by placing a decalogue at my courthouse (though I have no objection to a decalogue enjoying display for its historical purpose) but to get out of the way so I can enjoy my own choice of religious sensibility unencumbered. This means the state should not be encouraging me towards a majoritarian religious sensibility, it should be silent.

That said, the state should not silence anyone either. That vilolates the free excercise clause. If a quote from Stonewall Jackson praises God for a victory at a battle in northern Virginia, its a historical statement by an important figure making a comment on an important occassion. We are not obligated to agree with Jackson any more on his attribution of victory than we are on his ideas of greater loyalty to a state than to the union, or on slavery, or any other topic. The statement allows us to understand the past, past actors, and past situations. It does not require our agreement. Likewise statements made about the Grand Canyon, the Gettysburg Address, or any other usage or invoication of the Christian God. They are not violations of the establishment clause, they are part of the historical record. If their purpose in being posted, plaqued, or carved is to tell us about our history, they serve a good and noble public purpose. If their purpose is to advance Justice Moore's own ideas abouthis religion, they do violate the establishment clause and should be withdrawn.